Mandle v. Horspool
| Decision Date | 05 March 1918 |
| Parties | ISADORE MANDLE, Appellant, v. ERNEST E. HORSPOOL and PEARL HORSPOOL, His Wife, SENECA C. TAYLOR, UNION TRUST COMPANY (a Corporation), TITLE GUARANTY TRUST COMPANY (a Corporation), HENRY BELDING, and LUCINDA MILES, Respondents |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Louis County.--Hon. G. A Wurdeman, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Isidore Landauer and Henry H. Furth for appellants.
(1) A mortgage or deed of trust is valid though the note or bond which it purports to secure has no existence, or was not delivered, provided that the debt exists. 4 Kent's Commentaries, 145; Graham v. Stevens, 34 Vt. 166; 80 Am. Digest, 675; Carnall v. Duvall, 22 Ark. 136; Lee v. Fletcher, 46 Minn. 49; Nazro v Ware, 38 Minn. 443; Volmer v. Stagerman, 25 Minn. 234; Eacho v. Crosby, 26 Grat. 172; Hodgdon v. Shannon, 44 N.H. 572; Ogden v Ogden, 160 Ill. 543, 54 N.E. 750; Goodhue v. Berrien, 2 Sanf. Ch. 630; McFadden v. State, 82 Ind. 558; Field v. Brokaw, 148 Ill. 654, 37 N.E. 80; Moses v. Hatfield, 27 S.C. 324, 3 S.E. 538; Smith v. Smith, 27 S.C. 166, 3 S.E. 78; Phyler v. Elliott, 19 S.C. 257; Mitchell v. Burnham, 44 Me. 286; Burger v. Hughes, 5 Hun, 180, 63 N.Y. 629; Porter v. Smith, 13 Vt. 492. (2) (a) It is not essential to the validity of the mortgage or deed of trust that the debt which it secures be correctly designated. (b) Extraneous evidence is admissible to identify the debt intended to be secured by a mortgage. (c) If the amount of the debt is less than the amount stated in the mortgage, the mortgagor is chargeable only with the amount actually owing. (d) The recitals of the instrument are sufficient evidence of the existence of the debt. Stevens v. Hampton, 46 Mo. 404; Scott v. Bailey, 23 Mo. 140; Shirras v. Craig, 7 Cranch 34; Williams v. Moniteau National Bank, 72 Mo. 292; Schierl v. Newberg, 102 Wis. 552; Bennett v. Wright, 135 N.Y. 543; Martin v. Nixon, 92 Mo. 26; Morrison v. Knight, 130 Ga. 400, 60 S.E. 255; Trustees of Mut. Loan Assn. v. Tyre, 81 Atlantic 48; Lee v. Fletcher, supra; Eacho v. Crosby, supra; Goodhue v. Berrien, supra; Gordon v. Preston, 1 Watts 385, 26 Am. Decisions, 75; Nazro v. Ware, supra; Burger v. Hughes, supra; Perkins & Manning Co. v. Drew & Landrum's Assigner, 122 S.W. 526; Shoemaker v. Smith, 80 Iowa 655. Harwood v. Toms, 130 Mo. 225. (3) (a) An extension of time, though without agreement and for an indefinite time, is a sufficient consideration to bind secondary obligors if a reasonable time is in fact given. Powers v. Woolfolk, 132 Mo.App. 354; Hill v. Railroad, 82 Mo.App. 188; Marks v. Bank, 8 Mo. 377; Crears v. Hunter, L. R. 19, Q. B. D. 341; Alliance Bank v. Broome, 2 Drewry & Smale, 289; Perkins v. Trinity R. Co., 61 Atlantic 167, 69 N.J.Eq. 723; First Nat. Bank v. Davis, 146 Ill.App. 462; Muir v. Greene, 100 N.Y.S. 722; Fairbanks, Morse & Co. v. Baskett, 98 Mo.App. 53, 65; In re All Star Feature Co. ex parte Willot Film Co., 232 F. 1004. (b) Detriment to the mortgagee is a sufficient consideration for the mortgage. Hill v. Railroad, supra. (c) It is enough if there was any consideration. First Nat. Bank v. Keller, 111 N.Y.S. 729, 127 A.D. 435. (4) One who purchases expressly subject to an encumbrance acquires only the equity of redemption of the grantor. Landau v. Cottrill, 159 Mo. 308; Walker v. Goodsell, 54 Mo.App. 635; Young v. Evans-Snyder-Buel Com. Co., 158 Mo. 395.
Sam D. Hodgdon and S. C. Taylor for respondent.
This is an appeal from a judgment on demurrer, dismissing plaintiff's petition on the ground that it states no cause of action.
Plaintiff's second amended petition alleges that on March 1, 1912, the Star Tile & Mantel Company, a corporation, was indebted to plaintiff's assignor, on open account, in the sum of $ 1317.16, which was then due and payable. That defendants, Ernest E. and Pearl Horspool, about April 26, 1912, in consideration of an extension of time for the payment of said indebtedness, which was agreed to be granted by plaintiff's assignor to the debtor, promised and agreed to and with plaintiff's assignor to execute and deliver to the latter a deed of trust on certain real estate in St. Louis County, Missouri, described in the petition, as security for the payment of said indebtedness.
That in pursuance of said promise, the defendants, Horspool, executed and delivered to plaintiff's assignor a deed of trust on said real estate delivered in fact as security for the indebtedness of said Star Tile & Mantel Company, but reciting on its face that it was given to secure a debt of $ 3000, purporting to be evidenced by a principal note of defendants, Horspool, for $ 3000, due in three years, and six semi-annual interest notes for the interest to accrue for said period, which said deed of trust was duly recorded in the office of the Recorder of Deeds for St. Louis County, Missouri, in Book 295, at page 239.
That in consideration of the premises, plaintiff's assignor extended the time for the payment of said indebtedness for more than six months. That in the meantime the Star Tile & Mantel Company made various payments to plaintiff's assignor, amounting to $ 220.78.
That on October 29, 1912, the Star Tile & Mantel Company was adjudged a bankrupt, and plaintiff's assignor presented his claim and received dividends thereon, amounting to $ 190.25. That the balance due and unpaid, after crediting all payments of dividends, is $ 906.13.
That although the deed of trust was duly executed and delivered to plaintiff's assignor, yet the notes described in the deed of trust, and which it purported to secure, were not delivered to plaintiff's assignor, and defendants, Horspool, have since refused to deliver said notes.
That after the execution of the deed of trust, defendants, Horspool, conveyed the property to defendant, Miles, by a deed expressly providing that the conveyance was subject to the deed of trust in suit.
That before the institution of this suit the plaintiff acquired by assignment the interest of his assignor in the debt and cause of action. The interests of the defendants other than Horspool and Miles are those of lienors of the property.
The petition prays for the foreclosure of the deed of trust. Each of the defendants filed a demurrer to the said second amended petition of plaintiff, the grounds for such demurrers being identical, namely that the said petition does not state facts sufficient to constitute a cause of action. The demurrers were sustained, and, plaintiff refusing to plead further, the trial court rendered final judgment in said cause, dismissing plaintiff's bill. Whereupon plaintiff brings this appeal.
Defendants below, respondents here, have not filed any briefs in the case and as the learned trial judge did not hand down any memorandum stating the specific defects in the petition for which he held the petition demurrable, we have nothing before us to point out wherein the said petition is held to fall short of stating a cause of action.
After a careful reading of the petition we believe the controlling question in the case is whether the petition on its face shows a valid security, in view of the fact that it appears therein that the notes described in the deed of trust in question, and which notes the deed of trust recites it is executed to secure, were never in fact delivered to plaintiff's assignor, mortgagee in said deed of trust.
While we have not found a case in our State in which this point has been directly decided, it has been held that it is not required that a mortgage shall set forth a literal copy of the instrument secured thereby, but that it is sufficient to describe it according to its legal effect. That if it is stated in the conditions of the mortgage "that the grantor was indebted to the grantee for money loaned and his liability on diverse bills of exchange and promissory notes and it provided that if he discharged them in six months the deed should be void," it was a sufficient description of the debts since it was capable of being made...
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